The plaintiff brought a class action against the Attorney General of Canada alleging Health Canada was negligent in regulating temporomandibular joint implants.
The defendant moved to decertify the action, arguing the pleadings did not establish a private law duty of care.
On a special case stated to the Court of Appeal, the court held that while a regulator's public statements alone do not create proximity, the plaintiff's allegations that Health Canada repeatedly misrepresented the safety of the implants and failed to correct the misrepresentation despite knowing the risks could arguably establish a prima facie duty of care.
The motion was granted, allowing the claim to proceed.
